M OMKAR Vs. REVURI PRAKASH REDDY

JUDGEMENT

(1.) The appellant who contested the election as a Marxist (Communist Party of India) candidate for a seat to the Andhra Pradesh Legislative Assembly in the elections held on 5/12/1994, lost to respondent No. 1, who had contested the election as a candidate fielded by Telugu Desam Party by a narrow margin of 87 votes. The appellant filed an election petition challenging the election of respondent No. 1 alleging irregularities during counting and sought a recount of votes. The election petition was contested by respondent No. 1 and from the pleadings of the parties, the following issues were framed :

(2.) After evidence was led by the parties, the learned single Judge of the High Court dismissed the election petition with costs. Hence, this appeal.

(3.) The only grievance projected by learned counsel for the appellant before us is that the Returning Officer had violated the instructions of the Election Commission of India with regard to the counting of votes particularly in polling station Nos. 28, 35, 191 and 200, viz. , Rama-varam, Advi Rangapur, Musmi and Dubbagudem. According to the learned counsel, the votes polled in these polling stations were more than 90 Per Cent but the Returning Officer ignored the instructions issued by the Election Commission regarding counting of votes from such polling stations and that the irregularity so committed had materially affected the result of the election in so far it concern the returned candidate. The instructions on which the learned counsel has relied upon are contained in the Chief Election Commission Order dated 13/04/1991. Those instructions inter alia provide that if the Returning Officer, at the stage of counting of votes, finds that in a particular polling station 90 Per Cent votes have been cast and out of those votes, 90 Per Cent have gone in favour of one candidate and the votes cast in favour of the other candidate are very negligible, "he should keep aside the ballot papers contained in the ballot boxes used in that particular polling booth in a sealed cover". Further the Returning Officer is prohibited from declaring the result in such a case and he should seek orders from the Election Commission and only after receipt of the instructions from the Election Commission, should he proceed further in the matter of counting of votes. It is asserted that these instructions were violated by the Returning Officer and he counted the votes without following the procedure prescribed in the instructions.